Appellants Robert and Scarlett Paterson are Los Angeles Police officers, married to each other. In December 2004, R. Paterson called in sick. A supervisor, Lieutenant Raymond Garvin, suspected that he was not sick, but was abusing sick time. Garvin instructed Sergeant Adrian Legaspi to go to the Paterson home to find out. Legaspi spoke to both appellants, and both were the subject of internal LAPD misconduct complaints alleging that they had made false and misleading statements to Legaspi. Both were temporarily relieved from duty, but were later exonerated by the Board of Rights. They were reinstated and received back pay for the time of the suspension.*fn1 As to the City, the cause of action was violation of the Public Safety Officers Procedural Bill of Rights (Gov. Code, §§ 3300-3313), They sued the City of Los Angeles, Legaspi, and others.*fn2 which "requires that law enforcement agencies throughout the state afford minimum procedural rights to their peace officer employees." (Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 572, fn. omitted.) In that cause of action, appellants alleged that they were not afforded the protections guaranteed by the Act.*fn3 The remaining causes of action, intentional infliction of emotional distress and negligent supervision, were brought against both the City and Legaspi and depended on factual allegations about these same events.

Each officer sought a civil penalty of $25,000 for each violation of the Act, citing section 3309.5, subdivision (e), on malicious violations of the Act; punitive damages; damages for emotional distress; and money damages based on the theory that the award of back pay did not make them financially whole. Appellants also sought declaratory and injunctive relief to prevent the City from allowing its own violations of the Act to have a negative effect on them.

The City and Legaspi moved for summary judgment or summary adjudication. As to the tort causes of action, the motion was based on the doctrines of workers' compensation exclusivity and governmental immunity.*fn4 On the cause of action under the Act, the City contended that the Act only applies where there has been punitive action, and that appellants' exoneration by the Board of Rights nullified any punitive action, so that the Act did not apply. The trial court granted the motion on all theories and entered judgment for the City and Legaspi.

We find that the City and Legaspi were entitled to summary adjudication on the tort causes of action, which are barred by the doctrine of governmental immunity. However, we reverse the summary adjudication on the cause of action under the Act. The Act applies to an investigation and interrogation "that could lead to punitive action . . . ." (§ 3303, italics added.) The City's nullification theory has no support in the law.

Nor do we believe that the City is entitled to summary adjudication on its alternate theory, not raised in the trial court. That theory is that as a matter of law, on the undisputed facts (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316), Legaspi was engaged only in a "sick check," in the normal course of duty, and asked only "innocent preliminary and casual questions," so that the Act did not apply. (§ 3303, subd. (i), City of Los Angeles v. Superior Court (1997) 57 Cal.App.4th 1506, 1514.) The facts at summary judgment are to the contrary, and indicate that Legaspi was engaged in an investigation of suspected wrongdoing.

We thus reverse the judgment and remand with instructions to grant summary adjudication on the tort causes of action in favor of the City and Legaspi and to conduct further proceedings consistent with this opinion.

Facts

In December 2004, S. Paterson was on "bonding leave," having recently had a baby. On December 4, 2004, R. Paterson called in sick. Under LAPD policy, that call was good for a 48 hour period, but a supervisor, Lieutenant Garvin, suspected that he was not sick, but was abusing sick time. According to Garvin's testimony before the Board of Rights, his suspicion was based on the fact that R. Paterson's December 4th and 5th sick days were bracketed by days off, and on his mistaken belief that R. Paterson was a frequent user of sick time.

On December 5, Garvin sent Legaspi to the Paterson home. Neither officer was at home when Legaspi arrived. Instead, they were at S. Paterson's brother's apartment, where S. Paterson was helping her brother move and R. Paterson was sleeping in his brother-in-law's apartment upstairs.

Much of the rest of the narrative of the day's events is found in Legaspi's deposition testimony, Garvin's testimony before the Board of Rights, and documents before the Board of Rights, all proffered by appellants at summary judgment.

When she set out for the Paterson home, Legaspi took a tape recorder from the station. She turned it on as she walked to the Patersons' front door. R. Paterson's son (a minor), answered the door and gave Legaspi a cell phone number for his father. Standing in front of the Patersons' house, Legaspi called that number. She recorded her own part of the conversation, and appellants presented a partial transcript of the conversation.

S. Paterson answered the phone. Legaspi asked "But he is at home? And this is his wife?" Legaspi then confirmed that S. Paterson was an LAPD officer and confirmed her serial number, and said "And it is confirmed that Officer Paterson is at home asleep sick? Yes, ma'am. Okay. It is now 1:25. And I am ordering you, Officer Paterson, to put your husband on the phone instantaneously."

The transcript in our record does not include Legaspi's conversation with R. Paterson, but it does include Legaspi's call to Garvin, which seems to have taken place immediately after her conversation with R. Paterson.

This portion of the transcript begins with Legaspi saying "Hi. Guess what. Well, his son answered, said he's not home. He gave me his cell phone number. I have it all on tape, the conversation." Legaspi then summarized her conversation with R. Paterson: "He comes on the phone. He goes, 'Hey, Sarge. Yeah. What's' up?' And I said, Officer Paterson, I'm verifying your sick status. It's my understanding you are at home. You are upstairs asleep, or you were.' And he says, 'yes.' And I said, 'Yes, that's correct?'" Legaspi then told R. Paterson, "I am here at your residence . . . you have just given a false and misleading statement to a supervisor."

Appellants also proffered as an undisputed fact that within hours of her return to the station, Legaspi prepared a formal complaint about both appellants, and proffered LAPD's report on the internal affairs investigation of R. Paterson, which consistently refers to statements both appellants made to a supervisor "conducting a legitimate and necessary investigation concerning possible sick time abuse."

The City proposed as undisputed that Legaspi was conducting a "sick check," and proposed that "LAPD policy permits an in-person 'sick check,' which is where a supervisor goes to an officer's home to make sure the officer is okay, but an officer is not required to be at home when he or she is out sick." The definition was not ...

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